Q&A WITH LORI F. WINLAND
Emoji messages could amount to harassment
Q: Why should employers consider revisiting their harassment policies in light of the #MeToo movement?
A: The #MeToo movement raises legal and practical considerations for employers and employees as they navigate what appears to be a cultural shift in attitudes related to workplace interactions. But a harassment-free workplace culture isn’t just vital for employers’ legal compliance initiatives — it’s also good for business. Harassment routinely results in low employee morale, less productivity and low retention rates. Further, in terms of the monetary costs of harassment in the workplace, the U.S. Equal Employment Opportunity Commission reports that employers paid more than $160 million to victims of sexual harassment in 2016 alone — a number that is likely to grow.
Q: What should employers do to guard against harassment in electronic communications?
A: Employers should ensure that their electronic communications policies are updated and reference expectations of compliance with anti-harassment and nondiscrimination policies. Policies should reach all types of electronic communications, including email, text messages, online messaging and social media platforms. Employers also should conduct training for supervisory and managerial employees on nondiscrimination and anti-harassment laws and make sure supervisors and managers are aware of their obligations to escalate any report of harassment, including inappropriate electronic communications.
Q: Could emoji messages amount to harassment?
A: As emoji use continues to increase, so do the chances that emojis will be used inappropriately. Similarly, with the cultural move toward a broader view of sexual harassment, emojis that have been viewed as generally innocuous may gain newer and more inappropriate meanings, opening the door for allegations of sexual harassment. For example, a wink face following a joke could be perceived as a proposition, a tongue out face could be interpreted as an inappropriate gesture, and let’s not even get into the new meaning of the eggplant emoji. Employers should explicitly mention in their anti-harassment policies that harassment can include symbols such as emojis and ensure that their employees know that good judgment is required with respect to any electronic communications — regardless of whether words, pictures or emojis are exchanged.
Q: Should employers attempt to address harassment that occurs through electronic communications outside of working hours?
A: There are circumstances in which employers may be liable under anti-discrimination laws for misconduct by an employee outside of normal work hours. Employers should therefore implement policies regarding electronic communications between employees outside of work. Additionally, technology policies should minimize employees’ expectations of privacy in the use of employer-provided devices for the purpose of emailing, texting and communicating via social media sites.
Q: What about electronic communications between employees engaged in consensual relationships?
A: Realistically, employees have and will continue to engage in romantic relationships in the workplace. Employers must implement policies regulating these relationships in a manner that best fits within their particular workplace culture. There’s no one-size-fitsall answer to consensual relationship policies and technology policies addressing workplace relationships. At a minimum, a good consensual relationship policy prohibits romantic or sexual relationships between supervisors and direct subordinates. Beyond that, with respect to romantic and sexual relationships among co-workers, the policy should define prohibited and permitted actions and the consequences for violation of the policy. Technology policies should address how those prohibited and permitted actions play out through email, texting and social media.